Extracción de ADN genómico de las muestras

Under TRIPS, Art. 50, it is mandatory for every member to have provisional procedures for preventing infringement of intellectual property rights and preserving relevant evidence. 49 Procedural remedies should offer instant protection to the party concerned before the court makes a ruling to prevent an infringement from occurring, and to preserve relevant evidence in regard to the alleged infringement. In Arts. 44 – 47, TRIPS sets out a number of remedies to be provided for in the national laws of the member countries, including injunctions, damages, the right to require infringing goods (or materials and equipment used in their creation) be disposed of outside the channels of commerce or destroyed. There is also a right of information on how to obtain these remedies. In order to join WTO, since 2000 China has introduced all TRIPS measures in the Patent Law, the Trademark Law and Copyright Law. 50

In China, the Patent Law 2000, and the Trademark Law and Copyright Law 2001, all stipulate the preliminary nature of an injunction and the content of ‘evidence preservation or property preservation’. 51

As for the detailed implementation of provisional measures, the Supreme Court has made a detailed stipulation through judicial interpretation, for example, concerning the qualification

of the applicant, the applicable procedure and evidence, security, review, compensation for damage when court proceedings are not initiated, etc. The owner, the registered proprietor of, or interested person in a trademark, patent or work may apply to the people's court for evidence preservation, and property preservation, before he brings the action for the purpose of preventing the infringement under the circumstances where the evidence could be lost or is difficult to obtain afterwards. After the confirmation of the infringement of rights, based upon the request of the party concerned, the court can order the defendant to compensate by way of damages any infringement of the rights.

The civil liability for IPR infringement in China normally includes cessation of infringements, compensation for losses, elimination of harms and dangers, and the making of an apology. Administrative liabilities of IPR infringers includes: immediate cessation of the infringing act, confiscation, destruction of infringing goods and tools specially used for manufacturing the infringing goods, and fines. Offenders who have committed IPR crimes may be punished with imprisonment of no more than seven years or criminal detention in China, along with a fine.52

As for England, Figure 6 shows that courts have power to grant interim and other injunctions. They have power to grant orders to freeze assets and for the seizure of infringing articles. Administrative measures mainly concern customs prohibition, and the possibility of arresting the movement of pirated and counterfeit goods through the intervention of customs authority at borders. The Customs Authority receives and decides on applications for border protection. The Trading Standards Authority has powers to make test purchases and to seize goods and documents to protect competitors against unfair practices, and to protect consumers’ interests. The Independent Television Commission and the Radio Authority supervise the broadcasting and comparative advertising and sponsorship. 53

But the two countries differ in the process to obtain provisional protection; as mentioned above, there is no instant review or appeal in the trial process in China. Therefore, if the claimant applying for such provisional measures fails before the trial judge, he cannot apply for review to the higher court on such interim decisions. This affects the function of interim measures, compared with England. Furthermore, in China, all interim measures and injunctions are temporary orders on condition of the applicant’s guarantee of undertaking, rather than based on balance of convenience to both parties’ loss and interests if not granted54

. That is to say, once the applicant provides suitable money in its claims to guarantee its application, he can get an order to freeze the assets or the infringing undertaking; then he must file a case in 15 days after granting of the order. If he does not file a case in 15 days, the order automatically becomes invalid and he must pay over the guaranteed money for any damages caused to the defendant. The applicant can only get a permanent injunction to stop the defendant’s infringement after the final judgment with a full trial55. On the contrary, English applicant may get a permanent injunction once he gets an interim order to stop immediate infringing, if the infringer later does not challenge this injunction order by filing a suit. That is why most civil cases in England can be ended by the interim injunction. Interim application and appeal of interim decision can clearly influence the direction of the whole argument and lead to the final settlement. The China interim measures are not mainly to stop immediate infringing against the defendant. China interim measures mainly play a role in providing evidence for later trial. If IPR owners really want to stop infringing by the wrongdoers, they have to report and apply to an administrative authority to investigate and stop it56.

English court experience suggests that interim measures, especially interim injunction are a rapid and relatively cheap way of procuring temporary redress. The reason is clear:

‘First, the types of remedy, in particular the injunction (interim and permanent) and damages are more useful than punishment in the name of the state. There is no possibility in criminal procedure of securing an interim order to desist from conduct pending the trial, which will take weeks or months to mount; nor are there pre-trial procedures, such as discovery, for the extraction of information from a defendant.’ 57

But in China, the IPR owner mainly relies on administrative bodies to stop the manufacture or sale of the infringing products. They take civil action to resolve infringement disputes and seek compensation58. In particular there is no search order available in civil litigation. There is not any detail guidance for litigants to apply for a search order in China. The freezing injunction or charging order is only applied for and enforced in the execution period after the final judgment.59